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Endless secret war is a constitutional time bomb

Contributor: Jack L. Goldsmith

Jack L. Goldsmith is the Henry L. Shattuck Professor at Harvard Law School. He served as assistant attorney general, Office of Legal Counsel, from October 2003 through July 2004, and special counsel to the general counsel to the Department of Defense from September 2002 through June 2003 He is the author of “The Terror Presidency: Law and Judgment Inside The Bush Administration” (W.W. Norton 2007) and the co-founder of Lawfare blog.

This tribute is part of a series of reflections from HLS faculty, staff and alumni on the 15th anniversary of 9/11. View all tributes.

Today marks the fifteenth anniversary of the beginning of the longest armed conflict in American history. Two very different Commanders-in-Chief have presided over the conflict, which has involved massive changes in the identity of the enemy, in geographical scope, and in the strategy and tactics employed by the United States. There is no prospect of this conflict ending soon. If Pentagon officials are to be believed, we will certainly be noting the conflict’s twentieth anniversary, almost certainly its thirtieth, and probably its fiftieth.

The "Forever War" has posed enormous challenges to our constitutional system, which assumes that war will be exceptional, not perpetual.

The “Forever War” has posed enormous challenges to our constitutional system, which assumes that war will be exceptional, not perpetual. In many respects, checks and balances worked well in response to early, very controversial presidential actions related to wartime detention, interrogation, and surveillance. In these contexts, courts, Congress, the press, and civil society sparked robust public debate that highlighted the disapproval of the other institutions of government and the people, and then through various means altered these practices to render them lawful and democratically sanctioned.

But as the conflict has moved to a light-footprint stage characterized by very few American casualties and by stealth fighting via drone, cyberattacks, and Special Operations Forces, public debate has receded, congressional attention has become intermittent at best, and courts have played no role. Endless secret war with low domestic scrutiny is a constitutional time bomb, especially in the hands of a president less scrupulous than President Obama.